Exercise of Option and Provisions for Termination (a) Except as otherwise provided herein and subject to the right of cumulation provided herein, this option may be exercised, prior to the tenth anniversary date, as to not more than the following number of shares covered by this option during the respective periods set forth below: No shares from and after the date of grant and prior to the first anniversary date; shares from and after the first anniversary date and prior to the second anniversary date; shares from and after the second anniversary date and prior to the third anniversary date; shares from and after the third anniversary date and prior to the fourth anniversary date; shares from and after the fourth anniversary date. The right of exercise provided herein shall be cumulative so that if this option is not exercised to the maximum extent permissible during any such period it shall be exercisable, in whole or in part, with respect to all shares not so purchased at any time during any subsequent period prior to the expiration or termination of this option. This option may not be exercised at any time after the tenth anniversary date.
(b) Subject to the conditions hereof, this option shall be exercisable by the Participant giving written notice of exercise to the Company, specifying the number of shares to be purchased and the purchase price to be paid therefor and accompanied by payment in accordance with Section 4 hereof. Such exercise shall be effective upon receipt by the Treasurer of the Company of the written notice together with the required payment. The Participant shall be entitled to purchase less than the number of shares covered hereby, provided that no partial exercise of this option shall be for less than 10 whole shares.
(c) Except as provided in Section 3(f) below, if the Participant’s [director of] [employment with] with the Company [or one of its subsidiaries] terminates for any reason, other than retirement, change of control, total disability or death, this option shall immediately terminate; provided, however, that any portion of this option which was otherwise exercisable on the date of such termination of [directorship] [employment] may be exercised within the three-month period following the date of termination, but in no event after the tenth anniversary date. If the Participant dies during such three-month period, any portion of this option that was exercisable by the Participant on the date of his or her death shall be exercisable by the Participant’s personal representatives, heirs or legatees for the remainder of such three-month period.
(d) If the Participant dies while [a director] [an employee or otherwise in the service of the Company or any subsidiary] of the Company, any portion of this option that was exercisable by the Participant on the date of death shall be exercisable by the Participant’s personal representatives, heirs or legatees until the tenth anniversary date.
(e) In the event the Participant’s [services as a director of] [employment with] the Company [or one of its subsidiaries] terminates by reason of the Participant’s (i) retirement or (ii) total disability, any portion of this option that was exercisable by the Participant on the date of such termination shall be exercisable by the Participant at any time prior to the tenth anniversary date. If the Participant dies before the tenth anniversary date, this option shall be exercisable by the Participant’s personal representatives, heirs or legatees until the tenth anniversary date, to the same extent that the Participant could have exercised this option on the date of his or her death. For purposes of this Section 3(e), “retirement” shall mean the Participant’s voluntary termination of [membership on the Board of Directors either (i)] [employment with the Company or any subsidiary of the Company] at age 62 or above and after a minimum of five years of service as an employee of the Company or any of its subsidiaries [or (ii) after a minimum of nine years of service as a director of the Company], and “total disability” shall mean a disability which, in the reasonable opinion of the Board of Directors, renders the Participant unable or incompetent to carry out the Participant’s duties, responsibilities and assignments for a period of ninety (90) consecutive days.
(f) In the event of the Participant’s voluntary termination of [membership on the Board of Directors] [employment with the Company or any subsidiary] of the Company, other than as a result of retirement or total disability, the Board of Directors may, by giving written notice to the Participant, provide that any portion of this option that was otherwise exercisable on the date of termination of the Participant’s [directorship] [employment] may be exercised within a one year period following the date on which the Participant ceased to be [a director] [so employed] as set forth in written notice to the Participant, but in no event after the tenth anniversary date. If the Participant dies during such period, this option shall be exercisable by the Participant’s personal representatives, heirs or legatees, to the same extent that the Participant could have exercised this option on the date of his or her death. This option or any unexercised portion hereof shall terminate unless so exercised prior to the expiration of ten years from the date of its grant. [Employees only — In the event that a Participant ceases to be employed by the Company or a Company subsidiary, incurring a termination of employment, and immediately is engaged by the Company or a Company subsidiary as a consultant, any portion of this option that was not exercisable by the Participant on the date of such termination shall immediately terminate on the date of the termination of employment and any portion of this option that was exercisable by the Participant on the date of such termination shall remain exercisable until the date determined under Section 3(c), (d), (e) or (g) hereof, as if the Participant did not incur a termination of employment until the Participant ceases to be a consultant.]
(g) [Employee only — In the event the Participant’s employment with the Company or one of the Company’s subsidiaries terminates by reason of a change of control, any portion of this option that was exercisable by the Participant on the date of such change of control shall be exercisable by the Participant at any time until the date one year after such change of control, but in no event after the tenth anniversary date. If the Participant dies during such one-year period, this option shall be exercisable by the Participant’s personal representatives, heirs or legatees for the remainder of the one-year period, to the same extent that the Participant could have exercised this option on the date of his or her death. The Participant’s employment will have terminated by reason of the change of control if (i) the Participant continues to be engaged as an employee or consultant with a Company subsidiary after the Company ceases to have effective voting control of such subsidiary, or (ii) the Participant ceases to be employed or engaged as a consultant by the Company or a Company subsidiary in connection with the sale or other disposition by the Company of all or substantially all of the assets of a component of the Company or a Company subsidiary, whether such component is a subsidiary, unit, work location, line of business or otherwise. The Committee, in its sole discretion, shall determine whether a Participant’s termination of employment is by reason of a change of control.] [Director only — In the event of a change in control of the Company, and the Participant is removed as a director of the Company in connection with the change in control, any portion of this option that was otherwise exercisable on the date of the Participant’s removal shall be exercisable by the Participant at any time until the first anniversary of such change in control, but in no event after the tenth anniversary date. If the Participant dies during such one-year period, this option shall be exercisable by the Participant’s personal representatives, heirs or legatees for the remainder of the one-year period or the tenth anniversary date, if earlier. For purposes of this Section 3(g), a “change in control” of the Company shall be deemed to have taken place if: (i) a third person, including a “person” as defined in Section 13(d)(3) of the Exchange Act becomes the beneficial owner (as defined in Rule 13d-3 under the Exchange Act) directly or indirectly, of securities of the Company representing twenty-five percent (25%) or more of the total number of votes that may be cast for the election of the directors of the Company; or (ii) as the result of, or in connection with, any tender or exchange offer, merger, consolidation or other business combination, sale of assets or one or more contested elections, or any combination of the foregoing transactions (a “Transaction”) the persons who were directors of the Company immediately prior to the Transaction shall cease to constitute a majority of the Board of Directors of the Company or of any successor to the Company.]
(h) For purposes of this Agreement, the Participant shall be deemed to have a terminated employment or incurred a termination of employment upon (i) the date the Participant ceases to be employed by, or to provide consulting services for, the Company, any Company subsidiary, or any corporation (or any of its subsidiaries) which assumes the Participant’s award in a transaction to which section 424(a) of the Code applies; or (ii) the date the Participant ceases to be a Board member, provided, however, that if the Participant (x), at the time of reference, is both an employee or consultant and a Board member, or (y) ceases to be engaged as an employee, consultant or Board member and immediately is engaged in another of such relationships with the Company or any Company subsidiary (other than an employee who becomes a consultant), the Participant shall not be deemed to have a “termination of employment” until the last of the dates determined pursuant to subparagraphs (i) and (ii) above. The Committee, in its discretion, may determine whether any leave of absence constitutes a termination of employment for purposes of this Agreement and the impact, if any, of any such leave of absence on this option.
Grounds for Termination This Agreement may be terminated at any time prior to the Closing Date:
(a) by mutual written agreement of Albertson’s and Buyer;
(b) by either Albertson’s or Buyer if the Closing shall not have been consummated on or before September 22, 2006 (the “Termination Date”); provided that the right to terminate this Agreement pursuant to this Section 12.01(b) shall not be available to the party seeking to terminate if any action of such party or the failure of such party to perform any of its obligations under this Agreement required to be performed at or prior to the Closing has been the cause of, or resulted in, the failure of the Closing to occur on or before the Termination Date and such action or failure to perform constitutes a breach of this Agreement; provided, further, that the right to terminate this Agreement pursuant to this Section 12.01(b) shall not be available to Albertson’s if neither Albertson’s nor SUPERVALU shall have exercised its termination right under Section 8.1(c) of the Merger Agreement;
(c) by either Albertson’s or Buyer if there shall be any Law, regulation or nonappealable final order, decree or judgment of any court or governmental body having competent jurisdiction that would make the consummation of the transactions contemplated hereby illegal or otherwise prohibited;
(d) by Albertson’s if there shall have been a material breach of any representation, warranty, covenant or agreement on the part of Buyer contained in this Agreement such that the condition set forth in Section 10.03(a) would not be satisfied and which shall not have been cured prior to the earlier of (i) 20 Business Days following notice of such breach and (ii) the Termination Date;
(e) by Buyer if there shall have been a material breach of any representation, warranty, covenant or agreement on the part of any Seller contained in this Agreement such that the condition set forth in Section 10.02(a) would not be satisfied and which shall not have been cured prior to the earlier of (i) 20 Business Days following notice of such breach and (ii) the Termination Date; or
(f) by Albertson’s or Buyer if the Merger Agreement is terminated. The party desiring to terminate this Agreement pursuant to clauses 12.01(b), (c), (d), (e) or (f) shall give notice of such termination to the other party.
Amendment or Termination of Agreement This Agreement may be changed or terminated only upon the mutual written consent of the Company and Executive. The written consent of the Company to a change or termination of this Agreement must be signed by an executive officer of the Company after such change or termination has been approved by the Board.
CONDITIONS OF SETTLEMENT, EFFECT OF DISAPPROVAL, CANCELLATION OR TERMINATION 7.1 The Effective Date of the Stipulation shall be conditioned on the occurrence of all of the following events:
(a) the Court has entered the Preliminary Approval Order, as required by ¶3.1 hereof, substantially in the form set forth in Exhibit A attached hereto;
(b) the Settlement Amount has been deposited into the XXXX;
(c) the Court has entered the Judgment, or a judgment substantially in the form of Exhibit B attached hereto;
(d) Lexmark has not exercised its option to terminate the Stipulation pursuant to ¶7.3 hereof; and
(e) the Judgment has become Final, as defined in ¶1.12 hereof.
7.2 Upon the Effective Date, any and all remaining interest or right of the Defendants or the Defendants’ insurers in or to the Settlement Fund, if any, shall be absolutely and forever extinguished and the releases herein shall be effective. If the conditions specified in ¶7.1 hereof are not met, then the Stipulation shall be canceled and terminated subject to ¶7.4 hereof unless Lead Counsel and Defendants’ Counsel mutually agree in writing to proceed with the Stipulation.
7.3 Only Lexmark possesses the option to terminate the Settlement in the event that valid requests for exclusion from the Class exceed the criteria set forth in the Supplemental Agreement, executed between Lead Plaintiff and Lexmark through their respective counsel concurrently with this Agreement. The terms of the Supplemental Agreement shall not be disclosed in any other manner other than the statements herein and in the Notice, or as otherwise provided in the Supplemental Agreement unless and until the Court otherwise directs or a dispute arises between Lead Plaintiff and Defendants concerning its interpretation or application. If submission of the Supplemental Agreement to the Court is required for resolution of a dispute or is otherwise ordered by the Court, the parties will undertake to have the Court review the Supplemental Agreement in camera without filing it on the docket. If the Court requires that the Supplemental Agreement be filed, the parties shall request that it be filed under seal or with the percentage redacted.
7.4 Unless otherwise ordered by the Court, in the event the Stipulation is not approved or this Stipulation is terminated, canceled, or the Effective Date otherwise fails to occur, within ten (10) business days after written notification of such event is sent by Defendants’ Counsel or Lead Counsel to the Escrow Agent, the Settlement Fund (including accrued interest), less Taxes, Tax Expenses, and Notice and Administration Expenses which have either been disbursed pursuant to ¶¶2.1 and 2.8 hereof, or are chargeable to the Settlement Fund pursuant to ¶¶2.1 and 2.8 hereof, shall be refunded by the Escrow Agent pursuant to written instructions from Defendants’ Counsel. The Escrow Agent or its designee shall apply for any tax refund owed on the Settlement Amount and pay the proceeds, after deduction of any fees or expenses incurred in connection with such application(s) for refund, pursuant to written instructions from Defendants’ Counsel.
7.5 In the event that the Stipulation is not approved by the Court or the Settlement set forth in the Stipulation is terminated or fails to become effective in accordance with its terms, the Settling Parties shall be restored to their respective positions in the Litigation as of January 28, 2020. In such event, the terms and provisions of the Stipulation, with the exception of ¶¶1.1–1.36, 2.6–2.9, 6.3–6.5, 7.4–7.6, and 9.5–9.6 hereof, shall have no further force and effect with respect to the Settling Parties and shall not be used in this Litigation or in any other proceeding for any purpose, and any judgment or order entered by the Court in accordance with the terms of the Stipulation shall be treated as vacated, nunc pro tunc. No order of the Court or modification or reversal on appeal of any order of the Court concerning the Plan of Allocation or the amount of any attorneys’ fees, costs, expenses, and interest awarded by the Court to any of Plaintiffs’ Counsel or expenses to the Lead Plaintiff shall operate to terminate or cancel this Stipulation or constitute grounds for cancellation or termination of the Stipulation.
7.6 If the Effective Date does not occur, or if the Stipulation is terminated pursuant to its terms, neither Lead Plaintiff nor any of its counsel shall have any obligation to repay any amounts disbursed pursuant to ¶¶2.1 or 2.8. In addition, any expenses already incurred pursuant to ¶¶2.1 or 2.8 hereof at the time of such termination or cancellation but which have not been paid, shall be paid by the Escrow Agent in accordance with the terms of the Stipulation prior to the balance being refunded in accordance with ¶¶2.9 and 7.4 hereof.
7.7 Defendants warrant and represent that they are not “insolvent” within the meaning of 11 U.S.C. § 101(32) as of the time the Stipulation is executed and will not be as of the time the payments of the Settlement Amount are actually transferred or made as reflected in the Stipulation. This representation is made by Defendants and not by Defendants’ Counsel. In the event of a final order of a court of competent jurisdiction, not subject to any further proceedings, determining the transfer of the Settlement Fund, or any portion thereof, by or on behalf of Defendants to be a voidable preference, voidable transfer, fraudulent transfer, or similar transaction under Title 11 of the United States Code (Bankruptcy), or applicable state law, and any portion thereof is required to be refunded and such amount is not promptly deposited in the Settlement Fund by or on behalf of any Defendants, then, at the election of Lead Plaintiff the Settlement may be terminated and the Judgment entered in favor of Defendants pursuant to the Settlement shall be null and void. Alternatively, at the election of Lead Plaintiff, the Settling Parties shall jointly move the Court to vacate and set aside the release given and the Judgment entered in favor of the Defendants and that the Defendants and Lead Plaintiff and the Members of the Class shall be restored to their litigation positions as of January 28, 2020 and the Settlement Fund shall be promptly returned.
CONDITIONS FOR EMERGENCY/HURRICANE OR DISASTER - TERM CONTRACTS It is hereby made a part of this Invitation for Bids that before, during and after a public emergency, disaster, hurricane, flood, or other acts of God that Orange County shall require a “first priority” basis for goods and services. It is vital and imperative that the majority of citizens are protected from any emergency situation which threatens public health and safety, as determined by the County. Contractor agrees to rent/sell/lease all goods and services to the County or other governmental entities as opposed to a private citizen, on a first priority basis. The County expects to pay contractual prices for all goods or services required during an emergency situation. Contractor shall furnish a twenty-four (24) hour phone number in the event of such an emergency.
Reasons for Termination Executive’s employment hereunder may or will be terminated during the Employment Period under the following circumstances:
Duration and Termination of this Agreement This Agreement shall remain in force until March 1, 1998, and continue in force from year to year thereafter, but only so long as such continuance is specifically approved at least annually (a) by the vote of a majority of the Trustees who are not parties to this Agreement or interested persons of any party to this Agreement, cast in person at a meeting called for the purpose of voting on such approval, and (b) by the Trustees of the Trust, or by the vote of a majority of the outstanding voting securities of the Fund. The aforesaid requirement that continuance of this Agreement be "specifically approved at least annually" shall be construed in a manner consistent with the 1940 Act and the rules and regulations thereunder and any applicable SEC exemptive order therefrom. This Agreement may be terminated with respect to the Fund at any time, without the payment of any penalty, by the vote of a majority of the outstanding voting securities of the Fund or by the Trust's Board of Trustees on 60 days' written notice to you, or by you on 60 days' written notice to the Trust. This Agreement shall terminate automatically in the event of its assignment. This Agreement may be terminated with respect to the Fund at any time without the payment of any penalty by the Board of Trustees or by vote of a majority of the outstanding voting securities of the Fund in the event that it shall have been established by a court of competent jurisdiction that you or any of your officers or directors has taken any action which results in a breach of your covenants set forth herein.
Term and Termination of this Agreement The term of employment of -------------------------------------- Executive (the "Term") pursuant to this Agreement shall commence on the date hereof and shall continue for a term of five (5) years from the date hereof (the "Term").
(a) Executive's employment hereunder shall be terminated during the Term upon the death or Disability of Executive.
(b) Executive's employment hereunder may be terminated during the Term by the Company (i) with Cause at any time, and (ii) without Cause upon thirty (30) days written notice to Executive, provided that Executive shall immediately cease the performance of his duties hereunder if the Company shall so request following the date of such notice. In the event Executive's employment is terminated without Cause, the Company shall pay to Executive, as severance pay hereunder, an amount equal to the annual Base Salary paid to Executive at the Effective Date of Termination, which amount shall be paid in twelve (12) substantially equal monthly installments (less such deductions and withholdings as are required by law or the policies of the Company) commencing with the first day of the calendar month next following.
(c) Upon termination of Executive's employment hereunder pursuant to subsection 4(a) or for Cause pursuant to subsection 4(b), or upon voluntary termination by Executive of Executive's employment hereunder, the Company shall have no further obligation to Executive or his personal representative with respect to remuneration due under this Agreement, except for Base Salary earned but unpaid at the Effective Date of Termination and, in the case of termination of employment under subsection 4(a), a pro rata portion (based on the number of days of the fiscal year of the Company in which such termination occurred during which this Agreement was in effect) of the bonus, if any, payable under Section 3(b) with respect to such fiscal year. Payment of such bonus, if any, shall be made at such time as similar bonuses are paid to other executives of the Company with respect to such fiscal year.
(d) If Executive's employment hereunder is terminated during the Term by the Company without Cause pursuant to subsection 4(b), the Company shall have no obligation to Employee with respect to renumeration due under this Agreement or such termination other than (i) Base Salary earned but unpaid at the Effective Date of Termination, and (ii) a pro rata portion (based on the number of days of the fiscal year of the Company in which the Effective Date of Termination occurred during which this Agreement was in effect) of the bonus, if any, payable under Section 3(b) with respect to such fiscal year, and (iii) the severance pay described in subsection 4(b). Payment pursuant to clause (ii) of the preceding sentence shall be made when such bonuses are paid to other executive officers receiving bonus payments with respect to such fiscal year.
(e) Notwithstanding anything to the contrary expressed or implied herein, the covenants and agreements of Executive in Sections 5 and 6 of this Agreement shall survive the termination of Executive's employment hereunder.
DETERMINATION OF BREACH AND TERMINATION OF AGREEMENT A. Prior to making a determination that the Applicant has failed to comply in any material respect with the terms of this Agreement or to meet any material obligation under this Agreement, the District shall provide the Applicant with a written notice of the facts which it believes have caused the breach of this Agreement, and if cure is possible, the cure proposed by the District. After receipt of the notice, the Applicant shall be given ninety (90) days to present any facts or arguments to the Board of Trustees showing that it is not in breach of its obligations under this Agreement, or that it has cured or undertaken to cure any such breach.
B. If the Board of Trustees is not satisfied with such response or that such breach has been cured, then the Board of Trustees shall, after reasonable notice to the Applicant, conduct a hearing called and held for the purpose of determining whether such breach has occurred and, if so, whether such breach has been cured. At any such hearing, the Applicant shall have the opportunity, together with their counsel, to be heard before the Board of Trustees. At the hearing, the Board of Trustees shall make findings as to:
i. whether or not a breach of this Agreement has occurred;
ii. whether or not such breach is a Material Breach; iii. the date such breach occurred, if any;
Amendment or Termination This Agreement may be amended at any time by written agreement between the Company and Executive. The Company may terminate this Agreement by written notice given to Executive at least two years prior to the effective date of such termination, provided that, if a Change in Control occurs prior to the effective date such termination, the termination of this Agreement shall not be effective and Executive shall be entitled to the full benefits of this Agreement. Any such amendment or termination shall be made pursuant to a resolution of the Board.